Supreme Court Of Canada Revisits The Law Of Government Liability In Negligence

• Published date: 18 November 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Personal Injury, Professional Negligence
• Law Firm: Osler, Hoskin & Harcourt LLP
• Author: Mr W. David Rankin and David Williams

Nelson (City) v. Marchi (Marchi), 2021 SCC 41, is the Supreme Court of Canada's latest update on the law of government liability in negligence. The Court held that municipalities can be sued for negligent snow-clearing. And in doing so, the Court created a new legal test to determine when government agents are immune from suit in negligence.

Key take-aways from the decision are:

• Marchi did not radically change the law of government liability in negligence.
• Following Marchi, lower courts will look at four factors to determine if government conduct is immune from liability
  • the level and responsibility of the decision maker(s)
  • the process by which the decision was made
  • the nature and extent of budgetary considerations
  • the extent to which the decision was based on objective criteria
• It is unclear if Marchi has clarified the law in this area or will lead to further uncertainty and unpredictability. This post outlines aspects of the decision that could foment uncertainty.
• The scope of Marchi is limited, and significant issues pertaining to government liability in negligence were not addressed. These unaddressed issues include
  • the effect of statutes like the Crown Liability and Proceedings Act, 2019,¹ which govern the boundaries of government immunity
  • how the analysis may be different for claims of pure economic loss, rather than personal injury. Typically, courts have been reluctant to find a duty of care for claims of pure economic loss.

Generally, to make out a claim in negligence a plaintiff must show that the defendant owed them a duty of care, the defendant breached the standard of care expected of a reasonable person in their position, the defendant's breach of the standard of care caused the plaintiff injury and the plaintiff suffered damages as a result of that injury.

Marchi deals primarily with the first element, whether a government agent owes a private citizen a duty of care or whether the government agent is immune from liability. The law has long recognized that government agencies do not owe private citizens a duty of care for "core policy" decisions as this would cause improper judicial interference in the affairs of other branches of government.²

In the abstract, this proposition is unassailable. But in practice, courts have noted for decades that the line between immune policy decisions and actionable operational decisions is notoriously difficult to draw.³ One leading text has even called it the most "uncertain and contentious" area...